US court still blocking extradition of Montano to Spain for Jesuit murders

For a number of years, a court in Spain has had before it a case involving the 1989 murder of the Jesuit priests at the University of Central America.   Although the case is before the court, none of the former military officer defendants are before the court.   El Salvador's Supreme Court has twice denied extradition of the officers who are in the country.   That leaves Inocente Orlando Montano Morales, a former colonel in the Salvadoran army who is in custody in the US, and who has a pending extradition order to Spain.    But so far, Montano's lawyers have managed to prevent that order from taking effect.

Most recently, Montano's lawyers filed a habeas corpus action in federal court in North Carolina to stop the extradition.    The US government moved to dismiss the petition, but in an order issued last week, the federal judge refused to dismiss the petition and ordered more briefing from the parties and further delaying the process.

Duane Krohnke, a scholar of international human rights law, analyzed this latest order in a recent post on his blog:

Previous posts have discussed U.S. proceedings for extradition to Spain of Inocente Orlando Montano Morales (“Montano”), a former Salvadoran military officer, for his alleged participation in the murder of six Jesuit priests in El Salvador in November 1989. Such extradition was approved in February 2016 by a U.S. Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina, and thereafter Montano challenged that decision by filing an application for a writ of habeas corpus in that court with a hearing in November 2016 on that application and the Government’s motion to dismiss the application. 

Four months later, on March 27, 2017, U.S. District Judge Terrence W. Boyle entered an order denying the Government’s dismissal motion without prejudice and requesting the parties to submit new briefs to address certain issues. 

Judge Boyle’s analysis started with the assertions that (a) Spain’s criminal case against Montano and others was based upon its law prohibiting “terrorist murder” in other countries of its nationals, five of whom were the murdered Jesuit priests; and (b) the bilateral extradition treaty between Spain and the U.S. required under these circumstances that U.S. law provided “for the punishment of such an offense committed in similar circumstances.” 

Thus, for Judge Boyle, the issue to be addressed by the parties in subsequent briefs was whether the U.S. Constitution and law and international law provided for U.S. prosecution of such an offense under similar circumstances. The balance of the Judge’s Order suggests that he has serious doubts that this is so. 

He starts with this legitimate premise: “Universal jurisdiction is an international law doctrine that recognizes a ‘narrow and unique exception’ to the general requirement that nations have a jurisdictional nexus before punishing extraterritorial conduct committed by non-nationals” (quoting an Eastern District of Virginia case that was affirmed by the Fourth Circuit, which has jurisdiction over Judge Boyle’s court). This “narrow and unique exception,” he implicitly says, is limited to offenses that “rise to the level of universal concern.” 

Judge Boyle then makes a questionable assertion, which he pins on the parties’ alleged previous arguments, that Spain’s charges for “terrorist acts involving the murder of five Jesuit priests” do not rise to the level of universal concern, such as piracy or genocide.”

Read the rest of the post here.

If professor Krohnke is correct that Judge Boyle might be leaning in favor of Montano on the habeas corpus petition, it could be the death knell for the Spanish court case regarding the Jesuit murders.   Without any defendants extradited by El Salvador or the US, the case cannot proceed.   That would leave the case up to the Salvadoran courts, where it should have been originally but where there is so far little prospect for movement forward.